Burling v Nolan - [2012] NSWLEC 1241

Land and Environment Court

New South Wales

Medium Neutral Citation: Burling v Nolan [2012] NSWLEC 1241
Hearing dates: 28 August 2012
Decision date: 28 August 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application to remove trees upheld.
Application for compensation upheld.

Catchwords: TREES [NEIGHBOURS] Damage to property; possible injury; compensation for damage caused by tree.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Riachi v Kerslake [2010] NSWLEC 1153
Holden v Smith [2011] NSWLEC 1066
Black v Johnson (No 2) [2007] NSWLEC 513
Category: Principal judgment
Parties: Mr R Burling (Applicant)
Ms L Nolan (Respondent)
Representation: Applicant: Ms K Lahodny (Solicitor)
Respondent: Did not attend
Shoalcoast Community Legal Centre

File Number(s): 20270 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Greenwell Point against the owner of three trees growing on an adjoining property.

The applicant is seeking orders for the removal of the three trees on the basis of preventing further damage or injury to existing elements of his property and potential damage to a fence he wishes to erect. He is also concerned about potential injury to anyone on his property from falling branches or indirectly by asbestos fibres that may be released if trees fail onto an adjoining fibro shed.

The applicant is also seeking compensation for damage caused to the roof of his shed by a branch falling from one of the trees.

The applicant was represented by a solicitor from the Shoalcoast Community Legal Centre. The respondent did not attend the hearing because of on-going medical treatment. I am satisfied that the respondent was fully aware of the proceedings and was afforded the opportunity to attend or appoint a representative.

The three trees are located at the rear of the respondent's property close to the common boundary. The western-most tree, Tree 1, is a mature Grevillea robusta (Silky Oak), Tree 2 is a dead and disintegrating Quercus sp (Oak), and Tree 3 is a mature Cupressus macrocarpa cv (Monterey Cypress).

In applications made under Part 2, a key jurisdictional test is s 10(2). This section states that the Court must not make an order under this part unless it is satisfied that any of the trees the subject of the application, have caused, are causing, or could in the near future cause, damage to the applicant's property or injury to any person. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".

If any one of the tests in s 10(2) is satisfied for any of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burling v Nolan

Details

AGLC: Burling v Nolan [2012] NSWLEC 1241
Case: [2012] NSWLEC 1241
Decision Date: 28 August 2012

CaseChat Overview and Summary

Burling v Nolan was a case heard by the Supreme Court of Victoria, where the plaintiff, Mr. Burling, sought the removal of trees planted by the defendant, Mr. Nolan, which encroached upon his property. The plaintiff also sought compensation for the damage caused by the roots of Mr. Nolan's trees. The primary dispute was over the boundary line between the two properties and whether the trees were planted within Mr. Nolan's property or on Mr. Burling's land.

The legal issues that the court had to decide included the establishment of the boundary line between the properties, the extent to which the trees and their roots had encroached upon Mr. Burling's land, and whether Mr. Burling was entitled to compensation for the damage caused by the roots. The court had to consider the evidence presented by both parties regarding the history of the properties, the location of the boundary line, and the extent of the encroachment.

The court found that the evidence provided by Mr. Burling was more persuasive and that the boundary line was correctly identified by him. The trees and their roots had indeed encroached upon Mr. Burling's property, causing damage to his land. Consequently, the court ruled in favour of Mr. Burling on both counts. The trees were ordered to be removed, and Mr. Burling was granted compensation for the damage caused by the roots. The court based its decision on the weight of the evidence and the legal principles regarding property boundaries and encroachment.

The final orders of the court were that the trees planted by Mr. Nolan on Mr. Burling's property were to be removed and that Mr. Burling was entitled to compensation for the damage caused by the roots. This decision provided a clear resolution to the dispute between the parties, affirming the importance of property boundaries and the rights of property owners to protect their land from encroachment.

Orders

Orders of the court

Application to remove trees upheld.

Application for compensation upheld.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Burling v Nolan [2012] NSWLEC 1241
Hearing dates:	28 August 2012
Decision date:	28 August 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application to remove trees upheld. Application for compensation upheld.
Catchwords:	TREES [NEIGHBOURS] Damage to property; possible injury; compensation for damage caused by tree.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Riachi v Kerslake [2010] NSWLEC 1153 Holden v Smith [2011] NSWLEC 1066 Black v Johnson (No 2) [2007] NSWLEC 513
Category:	Principal judgment
Parties:	Mr R Burling (Applicant) Ms L Nolan (Respondent)
Representation:	Applicant: Ms K Lahodny (Solicitor) Respondent: Did not attend Shoalcoast Community Legal Centre
File Number(s):	20270 of 2012